Citation Nr: 0103636
Decision Date: 02/06/01 Archive Date: 02/15/01
DOCKET NO. 99-23 463 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York
THE ISSUE
Entitlement to service connection for a gastrointestinal
disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Bryant, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1943 to
December 1945, and from June 1948 to October 1948.
By rating decision in November 1948, the RO denied service
connection for a gastrointestinal disorder and other
unrelated claims. The veteran was notified of this decision
as well as his appellate rights. He did not submit a timely
appeal and the decision became final. 38 C.F.R. § 20.302(a)
(2000).
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1998 rating decision in
which the RO found new and material evidence had been
submitted to reopen the claim of entitlement of service
connection for a gastrointestinal disorder, and denied the
claim on the merits. The veteran filed a timely notice of
disagreement and his appeal has been perfected to the Board.
REMAND
The veteran and his representative contend that the veteran's
persistent gastrointestinal disorder, currently diagnosed as
peptic ulcers due to H-pylori bacteria, was acquired in
service. Specifically, the veteran states that he contracted
the pathogen underlying his gastrointestinal disorder in July
1948, shortly after re-enlistment. The veteran maintains
that the military misdiagnosed his gastrointestinal ailment
while in service, and he has suffered the ailment for decades
after his discharge.
The veteran stated in his original 1948 claim that prior to
his re-enlistment, in March 1946, he was seen by Dr. Marbits
of Geneva, New York, for stomach problems. None of the
records surrounding the veteran's medical treatment by Dr.
Marbits prior to re-enlistment have been associated with the
claims folder.
Robert A. Helft, D.O., the veteran's treating
gastroenterologist, indicated in a March 1998 letter that the
veteran's current gastrointestinal symptoms have been
clinically diagnosed as a H-pylori infection underlying
peptic ulcer disease. Dr. Helft further explained that it
was highly likely that the veteran has been colonized with
the H-pylori bacteria since his active service and that the
bacteria has been the source of his gastrointestinal
complaints. Dr. Helft did not provide the evidentiary basis
for his medical opinion.
In a March 1998 letter, the veteran stated that he had
received post-service treatment by many physicians for his
gastrointestinal complaints. During an October 1997
examination by his treating gastroenterologist, the veteran
related that, in 1965, he had an upper gastrointestinal
examination that reported gastric and duodenal ulcers. He
further related that in the 1970's, he had undergone a
cholecystectomy and appendectomy after reporting abdominal
pain. No medical records regarding the aforementioned
medical treatment have been obtained for association with the
claims folder.
The veteran has not been afforded a VA examination in
conjunction with his pending claim.
Following a complete review of the claims folder, the Board
finds that further development is warranted to comply with
the provisions of the Veterans Claims Assistance Act. At
present, the record reveals that the veteran had
gastrointestinal complaints in service and that he continued
to complain of gastrointestinal symptoms after service. The
record also contains a current diagnosis of a H-pylori
infection underlying peptic ulcer disease. The veteran's
treating gastroenterologist has stated that there may be a
relationship between the veteran's current diagnosis and his
symptoms in service. It does not appear that the veteran's
physician had reviewed the veteran's service medical records
or other records of treatment pertaining to his
gastrointestinal symptoms prior to forming his opinion.
Generally, when a medical opinion relies wholly or partially
on the veteran's rendition of his medical history, the Board
is not bound to accept the medical conclusion, as it has no
greater probative value than the facts alleged by the
veteran. Swann v. Brown, 5 Vet.App. 229, 233 (1993). Dr.
Helft should be given an opportunity to provide such
information, which would be useful in the adjudication of
this case. As noted above, the veteran has identified other
treatment sources for his gastrointestinal complaints and
those records have not been obtained for association with the
claims folder. Prior to making a decision in this case, all
pertinent medical records must be reviewed.
Based on the foregoing, the case is REMANDED to the RO for
the following action:
1. The veteran should be asked to
identify any sources of information which
would tend to show complaints, findings,
treatment or diagnosis of a
gastrointestinal disorder which have not
been obtained to date, with special
attention to records compiled during the
period of one year following his
discharge from service in 1948 and the
period from 1948 to 1997. Thereafter,
and with appropriate authorizations, the
RO should obtain a copy of all pertinent
medical records from the identified
health care provider(s), to include
records from Dr. Marbits in Geneva, New
York, if available, and records from the
veteran's reported cholecystectomy and
appendectomy in the 1970's. All records
obtained should be associated with the
claims folder.
2. The RO should contact Dr. Robert A.
Helft and obtain a copy of all pertinent
medical records of the veteran which have
not already been associated with the
claims folder. Thereafter, the RO should
afford Dr. Helft the opportunity to
submit a written medical opinion
regarding his evidentiary basis for
finding a link between the veteran's in-
service gastrointestinal symptoms and his
currently diagnosed H-pylori infection
underlying peptic ulcers.
3. After associating with the claims
file all available records received
pursuant to the development requested
above, the veteran should be afforded an
appropriate VA examination to determine
the nature and etiology of any
gastrointestinal disorder. It is
imperative that the physician who is
designated to examine the veteran reviews
the evidence in his claims folder, to
include a complete copy of this REMAND.
All appropriate tests and studies should
be conducted, and all clinical findings
should be reported in detail. Following
examination, the physician should
diagnose all gastrointestinal pathology.
The physician should render an opinion,
as to whether it is as least as likely as
not that any current gastrointestinal
pathology is in any way related to his
active military service or whether it is
due to other causes. In providing such
an opinion, the examiner should address
whether it is at least as likely as not
that the gastrointestinal disorder pre-
existed service; and, if so, whether it
is at least as likely as not that any
pre-service gastrointestinal disorder
increased in severity during or as a
result of the appellant's military
service. Prior to rendering such an
opinion, the examiner should elicit from
the veteran a detailed history of
gastrointestinal complaints, to include
his in-service gastrointestinal disorder.
All examination findings, along with the
complete rationale for each opinion
expressed and conclusion reached, should
be set forth in a typewritten report.
4. To help avoid future remand, the RO
must ensure that all requested
development has been completed (to the
extent possible) in compliance with this
REMAND. If any action is not undertaken,
or is taken in a deficient manner,
appropriate corrective action should be
undertaken. See Stegall v. West, 11 Vet.
App. 268 (1998).
6. The RO must also review the claims
file and ensure that all notification and
development action required by
the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475 has been
completed. In particular, the RO should
ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
(to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107) are fully
complied with and satisfied.
7. After completion of the foregoing,
and any other development deemed
warranted by the record, the RO should
re-adjudicate the issue of entitlement to
service connection for a gastrointestinal
disorder on the merits, in light of all
applicable evidence of record and all
pertinent legal authority, to include the
recently amended/added statutory
provisions pertaining to VA's duty to
assist/notify a claimant. The RO must
provide adequate reasons and bases for
all of its determinations, citing to all
governing legal authority and precedent,
and addressing all issues and concerns
that are noted in this REMAND.
8. If the benefit sought on appeal
remains denied, both the veteran and his
representative should be provided with an
appropriate supplemental statement of the
case and given the opportunity to respond
within the applicable time before the
claims file is returned to the Board for
further review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).